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Army Corps of Engineers has statutory authority to regulate dumping fill: Supreme Court

By Bernard Hibbitts (editor) and University of Pittsburgh School of Law students.

[JURIST] The US Supreme Court ruled 6-3 Monday in Coeur Alaska, Inc. v. Southeast Alaska Conservation Council and Alaska v. Southeast Alaska Conservation Council that the US Army Corps of Engineers may issue a permit for discharge of fill material otherwise subject to limitations under Sections 301 or 306 of the Clean Water Act (CWA). The US Court of Appeals for the Ninth Circuit had held in favor of environmental organizations, finding that petitioner corporation's request should have been considered by the Environmental Protection Agency (EPA), rather than the Corps. In reversing, Justice Anthony Kennedy wrote: These cases require us to address two questions under the Clean Water Act. The first is whether the Act gives authority to the United States Army Corps of Engineers, or instead to the Environmental Protection Agency (EPA), to issue a permit for the discharge of mining waste, called slurry. The Corps of Engineers has issued a permit to petitioner Coeur Alaska, Inc., for a discharge of slurry into a lake in Southeast Alaska. The second question is whether, when the Corps issued that permit, the agency acted in accordance withlaw. We conclude that the Corps was the appropriate agency to issue the permit and that the permit is lawful.Justice Ruth Bader-Ginsburg filed a dissenting opinion, joined by Justices David Souter and John Paul Stevens.Petitioner Coeur sought and received a permit from the Army Corps of Engineers to dam an Alaskan lake and deposit fill material, increasing the lake's surface area. The issue arose because the Corps has authority under § 304 of the CWA to regulate fill material, but the EPA has authority to regulate pollutants.

Full post as published by JURIST - The Paper Chase on June 22, 2009 (boomark / email).